Friday, July 9, 2010

A rose by any other name (is just as thorny)

Oh what tangled webs we weave...

Harris County District Attorney Pat Lykos came out with the DIVERT program for motorists accused of DWI who had never been in trouble with the law before. The idea behind the program was to move DWI cases off the courts' dockets by allowing citizens charged with DWI to enter into a program that could lead to their records being expunged if they were successful.

Of course we have no idea whether anyone's record will be expunged because DIVERT is more akin to deferred adjudication (which the Legislature doesn't allow for DWI's) than pretrial diversion.

Here's how Peggy Ficak of the Houston Chronicle's Austin Bureau describes the program:

In Harris County, District Attorney Pat Lykos' office allows one accused of drunken driving for the first time to plead guilty to the DWI offense and get a strict probated sentence in which he receives treatment, performs community service and abides by other conditions, including a lock on his auto ignition that tests for alcohol use before he can drive. If he completes the program successfully, the conviction can be wiped from a motorist's record. That also allows the offender to avoid the surcharge.
"You've got to have a carrot to motivate these people, and you've got to keep the costs down," said Judge Jean Spradling Hughes, of Harris County Criminal Court at Law No. 15. "It doesn't ruin the rest of their life" the way a DWI conviction can, she added. 

The program "allows one accused of drunken plead guilty to the DWI offense..." There's the problem in a nutshell. When a defendant accepts an offer of deferred adjudication to a criminal offense he or she either pleads guilty or no contest to the judge. The judge then states that there is sufficient evidence to find the defendant guilty but that the court will defer a finding of guilt pending the completion of a period of probation. Should the person complete the probation successfully, the charge is dismissed and the person may apply for an order of nondisclosure. Should the person not complete the probation successfully, the court will enter the conviction and sentence the defendant. In other words, deferred adjudication is a contract between the court and the accused.

Pretrial diversion, on the other hand, is an agreement between the prosecutor and the accused that the prosecutor will dismiss the case should the accused complete his term of probation, or whatever else was agreed upon in the contract. Should the accused fail to keep up his end of the bargain then the case will proceed as normal. Most importantly, no plea is entered before the court and, therefore, there is no finding that there is sufficient evidence to convict the accused.

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